Allen Place

Allen Place is going on his 34th year being a practicing Texas attorney. Since 1990, Allen’s practice has primarily focused on parole law. He served in the Texas Legislature from 1990 through 1999 and chaired the House Committee on Criminal Jurisprudence. In 1993, Allen was named one of the Ten Best Legislators by Texas Monthly magazine for his efforts during that session. Currently, Allen, author of the Texas Penal Code, is a lobbyist for TCDLA.

Twenty-Five Criminal Law Changes You Will Need to Know Starting September 1, 2019

The 86th Legislature adjourned sine die on May 27th, 2019. Since the Governor, Lieutenant Governor, and Speaker of the House have indicated the Legislature passed every “critical” bill during the regular session, it is not anticipated Governor Abbott will call a special session. Although the primary focus of the 86th Legislature was school finance and property tax reform, legislators found time to pass a number of criminal justice reforms.

In the area of criminal justice, numerous bills related to human trafficking were filed. The Legislature increased penalties and created some new offenses under the guise of fighting trafficking. A bill giving the Attorney General concurrent jurisdiction with local District Attorneys on trafficking cases did not pass. Numerous attempts to change the Texas Rules of Evidence on sexual assault and trafficking cases failed.

While there were many more bills altering the Penal Code and Code of Criminal Procedure, the following 25 bills are the ones most likely to have an effect on the day-to-day practice of criminal law beginning September 1, 2019:

1.   SB 2136: Expands the “nature of the relationship” evidence by the defense. This amendment to CCP Article 38.471, which formerly applied to just cases of domestic violence, now applies to all offenses and still applies to both parties. In cases where a defendant is arrested for actions in response to something that happened earlier (but often precluded from admitting this evidence), this statutory change allows for the types of defenses where the nature of the relationship is critical to understanding what prompted the behavior. A good example of this would be a battered woman’s defense in a murder prosecution. The statute broadly states that “each party may offer testimony or other evidence of all relevant facts and circumstances that would assist the trier of fact in determining whether the actor committed the offense described by Subsection (a), including testimony or evidence regarding the nature of the relationship between the actor and the alleged victim.”

2.   SB 346: Changes the allocation of court cost revenue to fund indigent defense. Less of the money paid by defendants will go to breath alcohol testing, law enforcement management, and retirement, Texas Commission on Law Enforcement, and crime victims’ compensation, leaving approximately 20% of all court cost revenue going to the fair defense account.

3.   HB 2048: Repeals the Driver Responsibility Program. This bill eliminates the DRP as of 9/1/2019, meaning any unpaid surcharges on the effective date will no longer be an obligation, and every driver with a suspension on the effective date will have it lifted. It is estimated a million Texas drivers will have surcharge suspensions lifted on their license then, and no reinstatement fee will be required to be paid by the driver. As written, the bill provides for what is basically a new “fine” for DWI-type convictions on or after September 1; however, no insurance tickets and DWLI are included in this new “fine.” There is no provision for a driver’s license suspension going forward in any circumstance, and the bill provides for an indigency determination to be made by the sentencing judge. There are obvious questions regarding the constitutionality as well as the application and collection of this new “fine” structure.

4.   HB 1279: Clarifies and corrects the references to the effect of parole in jury charges. The current charge is factually incorrect in that it indicates a sentence may be reduced by parole—as opposed to the bill correctly stating that the term of imprisonment may be reduced. This bill eliminates all references to good conduct time.

5.   HB 3106: Sexual Assault “investigations” must be entered into the Violent Criminal Apprehension FBI database, listing the suspect’s name, DOB, specific offense, description of manner in which committed, and any other information required by the FBI for inclusion.

6.   HB 1399: Mandatory DNA sample from defendants now applies post-arrest instead of post-indictment.

7.   HB 8: Starting in 2021, DNA evidence from sexual assault cases must be analyzed in 90 days.

8.   HB 8: The Statute of Limitations is eliminated for sexual assault cases where biological matter is collected and the material has not yet been subject to forensic testing or where there is no DNA match.

9.   HB 2758: Indecency with a child by exposure to a child under 14 is added to the list of offenses for which the defendant is not eligible for probation from a judge or a jury. (Indecency by contact was previously on this list.) Human trafficking, continuous human trafficking, aggravated promotion of prostitution, and compelling prostitution are added to this list and are not eligible for deferred adjudication.

10.  HB 1343: This bill requires an attorney for the State to file an application for a protective order on certain offenses following conviction or placement on deferred adjudication, unless one has already been filed by the alleged victim.

11.  HB 1325: Establishes the Hemp Farming Act to regulate the commercial production of hemp and clarifies the Legislature’s intent that the state have primary regulatory authority over the production of hemp and hemp products in Texas. Any promulgated rules regarding cultivation of hemp must comply with federal law. Hemp is defined as follows: the plant Cannabis sativa L. and any part of that plant, including the seeds of the plant and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis (Title 5, Agriculture Code, Chapter 121, Section 121.001). Section 481.002 of the Health and Safety Code now states hemp or the THC in hemp is not included under the Section (5) definition of a controlled substance, and Section (26) excludes hemp from the definition of marihuana. This bill is effective as of June 10, 2019.

12.  HB 1342: Eliminates the blanket prohibition on professional licenses due to a past criminal conviction. This bill removes as grounds for disqualification for a professional license a conviction within the past 5 years for an offense not directly related to the licensed occupation. The intent of the legislation is to enhance opportunities for a person to obtain gainful employment following conviction and discharge of the sentence.

13.  HB 1631: Prohibits the use of red light cameras of Texas. This bill is effective as of June 2, 2019.

14.  SB 21: Raises the age to purchase tobacco to 21 except for military personnel. Everyone under 30 must show ID for purchase.

15.  HB 3582: For the last 16 years, the Legislature has been considering a bill to allow Deferred Adjudication for DWI cases. The 86th Legislature passed a version that operates as follows: Deferred is available only for first-time offenders with a BAC of under .15, and this may be non-disclosed upon receiving a discharge and dismissal. For enhancement purposes, a DWI deferred is treated like a conviction similar to assault–family violence cases. The bill provides an ignition interlock device is required on DWI deferred unless the judge waives it following an alcohol/controlled substance evaluation. In comparing HB 3582 and HB 2048 (#3 above), HB 2048 assesses the new “fine” against individuals who have been finally convicted of a DWI offense, which is arguably not the case for a person who opts for a deferred adjudication under HB 3582.

16.  HB 1760: Lowers the age regarding the right to seal records to age 17 (or after one year has elapsed from final discharge) in juvenile cases.

17.  SB 194: A new offense of indecent assault has been created, carrying Class A misdemeanor punishment. Legislative intent is unwanted groping of someone 17 years and older cannot be adequately addressed with the maximum penalty of a Class C misdemeanor. Bill includes language “without the other person’s consent and with the intent to arouse or gratify the sexual desire of any person.” This bill is effective January 1, 2020.

18.  HB 2789: Another new offense creates a Class C misdemeanor when one unlawfully transmits sexually explicit visual material, which is described as “any person engaging in sexual conduct or with the person’s intimate parts exposed; or covered genitals of a male person that are in a discernibly turgid state and not sent at the request of or with the express consent of the recipient.”

19.  SB 20: Creates the new offense of Online Promotion of Prostitution. The penalty is a 3rd-degree felony but can be a 2nd upon prior conviction under this section or if conduct involves a person under the age of 18.

20.  SB 20: Creates the new offense of Aggravated Online Promotion of Prostitution. The penalty is a 2nd-degree felony but can be a 1st upon prior conviction under this section or if conduct involves a person under the age of 18. “Aggravated” in this context refers to the intent to promote the prostitution of five or more persons or facilitating five or more persons to engage in prostitution.

21.  SB 719: Adds Section (9) to Penal Code Section 19.03 and makes it a capital offense to murder an individual 10 years of age or older but younger than 15. However, the death penalty may not be assessed upon conviction.

22.  HB 37: Creates a Mail Theft statute in Penal code section 31.20. A “porch pirate” amendment was added to this bill on the House floor, which states the person appropriates mail from a mailbox or a premises. Note: Consider 18 U.S.C Section 1708 for preemption strategy.

23.  HB 98: This bill is an attempt to rewrite Penal Code Section 21.16(b), which is commonly known as the “revenge porn” statute. The 12th Court of Appeals struck down this law, and it is pending at the CCA. The new language specifies a person commits a civil or criminal offense if, without consent, an individual intentionally discloses intimate visual material with the intent to harm the depicted individual.

24.  HB 121: Creates a new defense for a person with a CHL who promptly departs a premises prohibiting handguns. The bill is intended to address the situation where a CHL carrier mistakenly carries a handgun onto a premises prohibiting such, but who promptly departs after receiving notice to depart.

25.  HB 2524: Amends Penal Code Section 31.04 to create a presumption of theft of service. However, the bill provides that the term “written rental agreement” does not include an agreement permitting an individual to use personal property for personal or household purposes, which is automatically renewable with each payment and permits the individual to become the owner.

This list of 25 bills is not every bill affecting the Penal Code or Code of Criminal Procedure. TCDLA members will have access to a complete and detailed explanation of every such bill during the summer of 2019. The undersigned TCDLA lobby team would like to thank the TCDLA Legislative Committee, Executive Committee, and every TCDLA member who helped us during this session.

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Allen D. Place Jr.
Place Law Office
109 S. 7th Street
Gatesville, TX 76528
David M. Gonzalez
Sumpter & Gonzalez
3011 N. Lamar, Ste. 200
Austin, TX 78705
Shea Place
Place Law Office
1122 Colorado, Ste. 1910
Austin, TX 78701

2013 Criminal Law Legislative Update

Introduction

During the 83rd Texas Legislature, criminal justice issues were dominated by Michael Morton, a man who was wrongfully convicted of killing his wife and who spent 25 years in prison before being officially exonerated. Michael Morton’s case highlighted the fact that Texas leads the nation in wrongful convictions and forced the Legislature to confront the issues that lead to wrongful convictions head-on. In his biennial address to the Legislature, State Supreme Court Justice Wallace Jefferson called on the Legislature to establish a special commission to investigate wrongful convictions, suggesting that public faith in the legal system is undermined when “wrongful convictions leave our citizens vulnerable, as actual perpetrators remain free.” While the bill to establish an innocence commission ultimately failed to pass, the Morton case generated tremendous momentum on all sides to legislatively address the systemic issues that led to Mr. Morton’s wrongful conviction and incarceration in order to prevent future wrongful convictions. In response to the Michael Morton travesty, which resulted in part from the withholding of favorable evidence by the prosecution, the “Michael Morton Act,” SB 1611, was signed into law and completely reforms the discovery process for criminal cases in Texas. In addition to the Michael Morton Act, there were several other criminal justice reform bills that passed that were designed to increase prosecutorial accountability and to prevent and remedy wrongful convictions. Also, numerous penalty-enhancement and new crime bills passed, as well as a bill that significantly alters the rules of evidence in certain criminal cases, and a bill in response to the U.S. Supreme Court’s recent decision in Miller v. Alabama.

Criminal Justice Reform Legislation

SB 1611, the “Michael Morton Act,” requires prosecutors to open their files to defendants and keep records of the evidence they disclosed in an attempt to reduce wrongful convictions in Texas. While the U.S. Supreme Court’s decision in Brady v. Maryland (1963) has long required prosecutors to disclose evidence that is “material either to guilt or punishment,” this new law requires disclosure of all police reports and witness statements, regardless of whether the evidence is material to guilt or punishment, and requires that any other evidence that is material to any matter be disclosed.

SB 344 addresses the appeals process for those who were convicted based on junk science by expressly allowing courts to overturn convictions in cases where the forensic science that originally led to the verdict has changed. The bill authorizes courts to grant relief on applications for writs of habeas corpus if the relevant scientific evidence is currently available but was not available at the time of the conviction because the evidence was not ascertainable through reasonable diligence at the time of trial as long as the scientific evidence would be admissible.

SB 1238 was in direct response to the Attorney General opinion sought by John Bradley while he was chairman of the Texas Forensic Science Commission. The Attorney General opinion limited the Commission’s investigative authority to labs and facilities that were accredited by DPS at the time the forensic analyses took place and restricted the Commission’s authority to investigate fields of forensic analysis that were not included in the statutory definition. This legislation specifically authorizes the Commission to investigate many more types of forensic disciplines that are unaccredited such as arson, fingerprinting, breath-alcohol testing, ballistic examinations, and unaccredited entities.

HB 1847 requires that prosecutors complete at least one hour of ethics relating to the duty to disclose exculpatory and mitigating evidence as part of the State Bar’s minimum continuing legal education requirements each year.

SB 825 disallows the State Bar from issuing private sanctions when prosecutors are found to have committed Brady violations and also changes the statute of limitations for state bar grievances alleging Brady violations to begin to run when a wrongfully imprisoned person is released from prison.

HB 2090 requires a written statement signed by an accused to be in the language that he or she can read and understand before it can be admitted as evidence in a criminal proceeding in an effort to reduce the possibility of false confessions being admitted at trial by a person that does not speak or understand English.

Penalty Enhancement and New Crime Legislation

HB 1302 requires an automatic sentence of life in prison without parole upon a second conviction for a “sexually violent offense” against a child under the age of 14. This leg­is­lation also specifically prohibits registered sex offenders from working at amusement parks, or seeking employment as a cab, bus, or limousine driver.

SB 124 provides that the offense of tampering with a governmental record is enhanced from a Class A misdemeanor to a third-degree felony if the governmental record was a public school record, report, or state-mandated assessment instrument (or a second-degree felony if the actor’s intent was to defraud or harm another).

HB 8 was the major bill that addressed human trafficking and provides for many enhancements including an enhancement on all prostitution offenses from a Class B misdemeanor to a second-degree felony if the person solicited is younger than 18 years of age, regardless of whether the actor knows the age of the person solicited at the time of the offense. This legislation also significantly alters the definition of the crime of possession of child pornography by providing that a person commits an offense if he knowingly or intentionally “access with the intent to view” child pornography.

SB 1360 enhances the penalty to the greater of a third-degree felony or the most serious offense charged in the criminal case if the underlying official proceeding involves family violence. This legislation also provides a statutory for­feiture by wrongdoing provision, which provides that a party to any criminal case who wrongfully procures the unavailability of a witness forfeits the right to object to the admissibility of evidence or statements based on the unavailability of the witness.

SB 275 enhances the penalty from a third-degree felony to a second-degree felony for the offense of leaving the scene of an accident resulting in the death of a person.

SB 549 enhances the minimum penalty from 5 to 15 years in prison upon a conviction for a first-degree felony engaging in organized crime offense. In addition, this legislation requires an automatic sentence of life without parole upon conviction of engaging in organized crime if the underlying offense is an aggravated sexual assault and the defendant is at least 18 years of age or older and the victim was either younger than 6; or if the victim was younger than 14 and the person caused serious bodily injury or placed the victim in fear of death, serious bodily injury, or kidnapping; or if the victim is younger than 17 and suffered serious bodily injury.

HB 2539 places an affirmative duty on computer technicians to immediately report the discovery of an image on a computer that is or appears to be child pornography and provides a new Class B misdemeanor offense if the computer technician fails to make such report.

Evidentiary Change Legislation

SB 12 suspends evidentiary rules 404 and 405 in trials for certain sex offenses by allowing the admission of evidence during the guilt/innocence phase of the trial that the defendant has committed a separate enumerated sex offense for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant. This legislation requires the trial judge to make a determination outside the presence of the jury and prior to the introduction of this evidence that the defendant committed the separate offense beyond a reasonable doubt.

Legislation in Response to Miller v. Alabama

SB 2 is an attempt by the Legislature to address the U.S. Supreme Court’s decision in Miller v. Alabama, which held that mandatory sentences of life in prison without the possibility of parole are unconstitutional for juvenile offenders (those under the age of 18). Prior to the passage of SB 2, the only punishment available for an individual convicted of capital murder was either automatic life in prison without the possibility of parole, or the death penalty. This posed a unique issue for 17-year-olds, who under Texas law are treated as adults and not juveniles, who were convicted of capital murder since both of its man­datory punishments (life in prison without parole and the death penalty) had been declared unconstitutional. As a result, SB 2 requires that an individual younger than 18 years of age who is convicted of capital murder be punished with an automatic sentence of life in prison with the possibility of parole.

Other Highlights

HB 434 expands the list of those authorized to draw blood from a person during a driving while intoxicated investigation to include emergency medical technicians and paramedics. Under previous law, only a physician, qualified technician, chemist, registered nurse, or licensed vocational nurse was authorized to take a blood specimen at the request or order of a peace officer for purposes of intoxication-related offenses. This new legislation will allow for a person’s blood to be drawn without having to transport the individual to a separate facility such as a hospital during an intoxication-related investigation.

HB 1862 amends the prohibited weapons statute by removing the switchblade knife from the prohibited weapons list so that there are no longer criminal consequences to possessing, manufacturing, transporting, repairing, or selling a switchblade knife.

SB 821 Brings Texas law up to date by adding “hot drafts” to “hot checks” statutes to allow prosecution of those who pay with hot drafts by adding “sight order,” along with checks, for purposes of theft by check to allow prosecution for insufficiently funded electronic transfers, or “hot drafts.”

Conclusion

Overall, the 83rd Texas Legislature made some significant improvements in the criminal justice system, decreasing the likelihood of wrongful convictions by increasing transparency and accountability. As a result, hopefully fewer innocent people will be wrongfully convicted and imprisoned in Texas. However, despite the significant progress made this session, there is still a lot that needs to be done to improve our criminal justice system in upcoming sessions.

Discovery in Texas—83rd Texas Legislature Style

During the 83rd Texas legislative session, criminal justice issues were dominated by Michael Morton, a man who spent 25 years in a Texas prison for not killing his wife. Exoneration finally came to Mr. Morton, an extremely decent and forgiving man who became known to every legislative office as simply “Michael.” In his biennial address to the Legislature, Texas Supreme Court Justice Wallace B. Jefferson called on lawmakers to establish a special commission to investigate wrongful convictions, suggesting that public faith in the legal system is undermined when “wrongful convictions leave our citizens vulnerable, as actual perpetrators remain free.” While the bill to establish an innocence commission ultimately failed (although the bill passed the House), the Morton case generated momentum on all sides to legislatively address systemic issues that led to Morton’s wrongful conviction and incarceration. In response to his case, which resulted in part from the withholding of favorable evidence by the prosecution, the “Michael Morton Act” (Senate Bill 1611) was signed into law by Governor Perry. This new statute, which substantially reforms criminal discovery in Texas, becomes effective January 1, 2014.

Before beginning a discussion of the statute, several people need special thanks and a little bit of history needs to be shared. Senators Rodney Ellis of Houston and Robert Duncan of Lubbock were the Senate authors of SB 1611, and Representative Senfronia Thompson of Houston was the House sponsor of this measure. All three of these legislators spent endless hours working on this bill during the spring of 2013. Two Senate staffers, namely Brandon Dudley from Senator Ellis’ office and Megan LaVoie from Senator Duncan’s office, went beyond the call of duty in “managing” this bill from just an idea into a statute. Clearly, Michael Morton and his lawyer, Patricia Cummings, along with Thomas Ratliff, were regulars in the Capitol, and their efforts were immeasurable. David Gonzalez and Kristin Etter, of Austin’s Sumpter-Gonzalez, attended numerous discovery meetings on behalf of TCDLA. Finally, many TCDLA members volunteered their time on this issue, both in and out of the pink granite building in downtown Austin, but three of them need special recognition. Bobby Mims, now the President of TCDLA, became very involved in this bill, and his advice and counsel were “spot on.” Mark Daniel, former TCDLA president and now the TCDLA Legislative Chair, fielded numerous emails and phone calls about SB 1611 and also offered sage advice. Finally, a special thanks to TCDLA member Troy McKinney, who volunteered his time, experience, and expertise on the finer points of SB 1611.

Discovery bills have been filed every session of the legislature since the 1990s. As SB 1611 is the first legislative change of the discovery statute in 40 years, these bills were not enacted as law. Even so, these “unsuccessful” discovery bills did have the effect of getting most counties in Texas moving to some degree of open file discovery. Many of these prior bills were “reciprocal” discovery bills; in fact, the original version of SB 1611 was a reciprocal discovery bill. After considerable discussion, the “reciprocal” elements of SB 1611 were removed before the bill went to the Senate Criminal Justice committee for hearing.

SB 1611 is a relatively short bill that can be condensed to two basic parts. First, the statute addresses what information is obtainable and the manner in which it will be requested or obtained. Second, once defense counsel has the discovery, the remainder of the bill addresses certain privacy concerns regarding the disclosed information. More informally, part one says you get the discovery and part two relates some limitations of what you can do with the discovery documents. The first part of the bill will be addressed initially.

Section 1 of SB 1611 names the Act “The Michael Morton Act.”

Section 2 of the bill contains all of the substantive changes to Article 39.14 of the Code of Criminal Procedure. Subsection (a) of this section now reads as follows:

Subject to the restrictions provided by Section 264.408, Family Code, and Article 39.15 of this code, as soon as practicable after receiving a timely request from the defendant the state shall produce and permit the inspection and the electronic duplication, copying, and photographing, by or on behalf of the defendant, of any offense reports, any designated documents, papers, written or recorded statement of the defendant or a witness, including witness statements of law enforcement officers but not including, the work product of counsel for the state in the case and their investigators and their notes or reports, or any designated books, accounts, letters, photographs, or objects or other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action and that are in the possession, custody, or control of the state or any person under contract with the state. The state may provide to the defendant electronic duplicates of any documents or other information described by this article. The rights granted to the defendant under this article do not extend to written communications between the state and an agent, representative, or employee of the state. This article does not authorize the removal of the documents, items or information from the possession of the state, and any inspection shall be in the presence of a representative of the state.

The first comment regarding new section (a) is that the discovery practice is request driven—i.e., the defense is required to make a request for the information. “As soon as practicable,” the State shall produce and permit the inspection and electronic duplication, copying and photocopying of the following as such is automatically provided:

  1.   Any offense reports
  2.   Designated documents or papers
  3.   Written or recorded statements of the defendant or a witness, including witness statements of law enforcement officers
  4.   Any designated books, accounts, letters, photographs, or ob­jects or other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action

For clarity, the State may provide electronic duplicates of any documents or information. Also, the statute exempts work product from the State or investigators from being discovered.

PRACTICE TIP: Since the “rights granted to the de­fen­dant under this article do not extend to written communications between the state and an agent, rep­re­sen­tative or employee of the state,” it is suggested the defense must still file a Brady/Giglio/Bagley motion in every case.

New Section (a) tracks current law in referencing Section 264.408 of the Texas Family Code and Article 39.15 of the Code of Criminal Procedure. The referenced family law section relates to child advocacy videos and the CCP section references child pornography. In summary, the allowable discovery in these instances would be making the Child advocacy video available to defense counsel or making the child pornography reasonably available to defense counsel.

Laboratories and contractors with the State are now covered under the discovery statute. The State can no longer claim private labs or agencies are not under “their care, custody or control.” The new discovery statute does not authorize the removal of documents, items, or information from the possession of the state and any inspection shall be in the presence of a representative of the state.

PRACTICE TIP: Because of the above limitation, the defense should still file a motion to view materials with the defense expert in private.

Section (c) reads as follows:

If only a portion of the applicable document, item or information is subject to discovery under this article, the state is not required to produce or permit the inspection of the remaining portion that is not subject to discovery and may withhold or redact that portion. The state shall inform the defendant that a portion of the document, item or information has been withheld or redacted. On request of the defendant, the court shall conduct a hearing to determine whether withholding or redaction is justified under this article or other law.

This section addresses the situation where only a portion of some item of discovery falls under the automatically provided section in (a). If this situation occurs, the State is required to inform the defense that a portion of the item has been withheld. At that point, the Court shall have a hearing to determine whether or not the withholding or redaction is allowed under law.

PRACTICE TIP: In the event the defense is made aware of a redaction or a withholding of discoverable items, a hearing should be requested per Section (b) as this would appear to be the first step in preventing and/or proving a Brady v. Maryland violation.

In keeping with the first basic idea of SB 1611, namely what is to be provided to the defense, we need to skip over to Sections (h), (i), (j) and (k). Section (h) reads as follows:

Notwithstanding any other provision of this article, the state shall disclose to the defendant any exculpatory, impeachment, or mitigating document, item, or information in the possession, custody, or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment of the offense charged.

Most practitioners recognize this new section of statutory law as a restatement of the fundamental holding in Brady v. Maryland. There was considerable debate concerning the inclusion of this type of language in the Texas statutes, as such is one of the fundamental case-law decisions in American criminal jurisprudence. Without going into further detail, the consensus of opinion was to place into statute the best Brady v. Maryland definition available. While section (h) is familiar territory and simple, the following information shall automatically be disclosed:

Any exculpatory/impeachment/mitigating document, item or information that tends to negate guilt of the defendant or would tend to reduce the punishment for the offense charged. Because of the mandatory nature of section (h) regarding exculpatory or impeachment or miti­gat­ing information, it is suggested (h) controls over any exception to providing discovery listed in earlier sections (for example, work product and agent communications if such are exculpatory, impeaching or mitigating).

Section (i) reads as follows:

The state shall electronically record or otherwise document any document, item, or other information provided to the defendant under this article.

Section (i) is being referred to as the discovery log section. One of the problems cited by appellate lawyers and others was the inability to pinpoint the specific items of discovery that may or may not have been provided to the defense. This section addresses, with specificity, the discovery that was provided to the defense. The clear intention of the discovery log section is to require a clear listing, at the trial level, of the discovery provided in every case.

Section (j) reads as follows:

Before accepting a plea of guilty or nolo contendere, or before trial, each party shall acknowledge in writing or on the record in open court the disclosure, receipt, and list of all documents, items, and information provided to the defendant under this article.

While all sections of this bill will be discussed and debated for years to come, this particular section has already commanded a good amount of attention. It has been suggested this section will cause courts to either slow down or shut down due to the simple requirements intended to show compliance with the statute. It should be pointed out that the requirements of (j) can be met by a written document or by a statement on the record. It is believed most courts will simply add another document to their standard “plea package” for pleas and for contested cases. This requirement can easily be met by the Court having the matter recited on the record.

Section (k) reads as follows:

If at any time before, during, or after trial the state discovers any additional document, item, or information required to be disclosed under Subsection (h), the state shall promptly disclose the existence of the document, item, or information to the defendant or the court.

This section is usually referred to as the “perpetual duty to disclose” provision. While this is common in civil discovery, this is a new concept to criminal law. It should be noted that Section (k) requires the duty to perpetually disclose before, during, or after trial any additional discovery “discovered” by the state. Finally, such must be disclosed to the defendant or the court.

Section (l) reads as follows:

A court may order the defendant to pay costs related to discovery under this article, provided that costs may not exceed the charges prescribed by Subchapter F, Chapter 552, Government Code.

There are two important aspects to this section, namely that the Court (not the State) may order costs to be paid, and if so ordered, the costs can’t exceed charges prescribed under the Open Records Act.

As noted above, the second half of SB 1611 details some privacy concerns of the statute, now that the discovery is in the defense attorneys’ possession. Section (e) and (f) read as follows:

Except as provided by Subsection (f), the defendant, the attorney representing the defendant, or an investigator, expert, consulting legal counsel, or other agent of the attorney representing the defendant may not disclose to a third party any documents, evidence, materials or witness statements received from the state unless the state under this article unless:

        (1) A court orders the disclosure upon a showing of good cause after notice and hearing after considering the security and privacy interest of any victim or witness; or

        (2) The documents, evidence, materials, or witness statements have already been publicly disclosed.

This section begins with a reference to section (f), which will be the next section discussed. The idea in (e) is that the following people may be allowed to view and share discovery:

  1.   Attorney
  2.   Investigator
  3.   Expert
  4.   Consulting legal counsel
  5.   Agent for attorney

Legislative discussions centered on the above list as people in the “inner circle.” The general rule under (e) is the inner circle may view and share discovery but can’t disclose to a third party unless:

  1.   A court orders such disclosure following a good cause hearing or
  2.   The information has already been publicly disclosed.

The legislative intent behind the hearing described in (1) above is to give the defense the ability to have a hearing, following appropriate notice, in the event public disclosure and/or disclosure to a third party is needed in the representation of the defendant. Privacy and security interests of any victim or witness are factors in this “good cause” hearing.

It will be interesting to see the body of law develop concerning section 2 above. This rule is simple—i.e., if the discovery information has already been publicly disclosed, the dissemination limitation to third parties in (e) does not apply. It has been suggested that the following may or will be construed as being publicly disclosed: probable cause affidavits, indictments, news reports, court hearings, magistration, etc. We shall see. While privacy concerns are becoming more pronounced in various areas of the law, our culture becomes more obsessed daily with publicly sharing almost every aspect of our lives. The intent seems rather clear, but the application of this particular section will be interesting.

Section (f) reads as follows:

The attorney representing the defendant, or an investigator, expert, consulting legal counsel, or agent for the attorney representing the defendant, may allow a defendant, witness, or prospective witness to view the information provided under this article, but may not allow that person to have copies of the information provided, other than a copy of the witness’ own statement. Before allowing that person to view a document or the witness statement of another under this subsection, the person possessing the information shall redact the address, telephone number, driver’s license number, social security number, date of birth, and any bank account or other identifying numbers contained in the document or witness statement. For purposes of this section, the defendant may not be the agent for the attorney representing the defendant.

Section (f) works with section (e) in that it clarifies that the following people are allowed to view discovery, namely the defendant, a witness, or a prospective witness. The highlighted individuals became known as the “outer circle.” The “inner circle” may allow the “outer circle” (a defendant, witness, or prospective witness) to view the information provided in this article but can’t give them a copy of the information, other than a copy of the witness’ own statement. However, before the “inner circle” can allow viewing under this section, certain privacy information must be redacted. The private information is described in detail: address, telephone number, driver’s license number, social security number, date of birth, or bank account or other identifying numbers.

The intent of (f) is simply to protect certain privacy information of people contained in witness statements and offense reports (in most instances). While it is true that any 14-year-old American child could locate anybody’s address or landline in two minutes or less on his smart phone, the remaining information is generally considered more private. Redaction is not a new concept, being already widely used, and it is believed this “best practice” will become routine. The last sentence of (f) clarifies that the defendant may not be the agent for the defense attorney under this section.

Section (g) reads as follows:

Nothing in this section shall be interpreted to limit an attorney’s ability to communicate regarding his or her case within the Texas Disciplinary Rules of Professional Conduct, except for the communication of information identifying any victim or witness, including name, except as provided in Subsections (e) and (f), address, telephone number, driver’s license number, social security number, date of birth, and bank account information or any information that by reference would make it possible to identify a victim or a witness. Nothing in this subsection shall prohibit the disclosure of identifying information to an administrative, law enforcement, regulatory, or licensing agency for the purposes of making a good faith complaint.

The beginning of this section is often referred to as the defense lawyers’ safety valve. In terms of intent, this provision was added to fully recognize that an attorney’s duty under the Professional Rules of Disciplinary conduct is to the client, and that the new discovery statute is not be interpreted as limiting the defense attorney’s ability to communicate regarding his or her case. While the safety valve sentence leads off Section (g), this section states that communication of identifying information of any victim or witness, including name (except as provided in (e) and (f)), address, telephone number, driver’s license number, social security number, date of birth, and bank account or other identifying information is not considered part of “communicating about his or her case.”

In construing section (g), the legislature is clearly trying to protect the same privacy information of victims and witnesses listed in sections (e) and (f). It does for the first time contain “name” of any victim or witness, although such is excepted per Sections (e) and (f). In other words, a name of a victim or witness can be communicated with the “inner circle” and the “outer circle” as previously discussed in (e) and (f). Many believe this section does two things. First, it provides a safety valve for the defense attorney who is zealously defending his or her client. Second, it restates in similar wording the general rule of (e) and (f) that the discovery provided is not to be disclosed to a third party (subject to the two exceptions in (e) and redaction in (f)).

PRACTICE TIP: Unless the information is already in the public realm, if you believe the information should be disclosed, request a hearing under (e).

The last sentence of (g) clarifies that nothing in this subsection prohibits the disclosure of identifying information to an administrative, law enforcement, regulatory, or licensing agency for the purpose of making a good faith complaint. The obvious intent here was not to hinder in any manner a lawyer from pursuing a legitimate complaint to the appropriate forum.

To conclude Section 2 of SB 1611, three final sections should be discussed, namely (d), (m), and (n).

Section (d) reads as follows:

In the case of a pro se defendant, if the court orders the state to produce and permit the inspection of a document, item, or information under this subsection, the state shall permit the pro se defendant to inspect and re­view the document, item, or information but is not re­quired to allow electronic duplication as described by Sub­section (a).

Recalling the age-old adage that a man who represents himself has a fool for a client, the Legislature has now given a statutory “amen” to this saying. Basically, pro se defendants do not enjoy the same discovery rights under SB 1611 as defendants with counsel. The State does not have to allow electronic duplication for a pro se defendant.

Section (m) reads as follows:

To the extent of any conflict, this article prevails over Chapter 552, Government Code.

This section is self-explanatory.

Section (n) reads as follows:

This article does not prohibit the parties from agreeing to discovery and documentation requirements equal to or greater than those required under this article.

Section (n) sets the stage for local bar associations to recognize SB 1611 as a “new day” in Texas, whether or not the local jurisdiction previously had an open file policy or not. This section encourages the State, defense bar, and judiciary to find their best way to implement SB 1611, recognizing they can “go above” the requirements in SB 1611 but can’t go below the new statutory requirements.

Sections 3 and 4 of SB 1611 read as follows:

The change in law made by this Act applies to the prosecution of an offense committed on or after the effective date of this Act. The prosecution of an offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for this purpose. For purposes of this section, an offense is committed before the effective date of this Act if any element of the offense occurs before the effective date.

This Act takes effect January 1, 2014.

Section 3 is standard legislative language in new criminal statutes. While there is nothing keeping the State from complying with the new statute prior to January 1, 2014, the actual start date for SB is New Year’s Day 2014.

Rarely has there been a bill more discussed and debated than SB 1611. While other pieces of legislation may have received more floor debate than the new discovery bill, this bill had a wide cast of characters working on it night and day in various work groups. Although I have yet to meet any practicing lawyer who does not have a comment about SB 1611—or would not have added a tweak to the language—the fact remains Texas has a new discovery bill. Defense lawyers will now “get the information” and must comply with some “privacy concerns,” but while critiques, concerns, and questions may linger, the final draft of SB 1611 put a smile on Michael Morton’s face.

There were two other bills brought about by the Morton case that passed the legislature and were signed into law by the governor. The first of these bills was SB 825, filed by Senator John Whitmire, Chairman of the Senate Committee on Criminal Justice. Besides the obvious attention paid to the discovery process in the Morton case, there was considerable attention paid to possible criminal and civil sanctions against the prosecutor in that case. That prosecutor was elected to a District Court bench in Williamson County but recently resigned his bench in September 2013. Representative Senfronia Thompson was the House sponsor on SB 825, which became effective on September 1, 2013.

SB 825 amends Section 81.072, Government Code, which reads as follows:

        (b) The Supreme court shall establish minimum standards and procedures for the attorney disciplinary and disability system. The standards and procedures for processing grievances against attorneys must provide for:

        [Sections 1 through 10 remain unamended]

        (11) the commission adopting rules that govern the use of private reprimands by grievance committees and that prohibit a committee:

        (A) giving an attorney more than one private reprimand within a five-year period for a violation of the same disciplinary rule; or

        (B) giving a private reprimand for a violation:

        (i) that involves a failure to return an unearned fee, a theft, or a misapplication of fiduciary property; or

        (ii) of a disciplinary rule that requires a prosecutor to disclose to the defense all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, including Rule 3.09 (d), Texas Disciplinary Rules of Professional Conduct; and

        (12) distribution of a voluntary survey to all complainants urging views on grievance system experiences.

        (b-1) In establishing minimum standards and procedures for the attorney disciplinary and disability system under Subsection (b), the supreme court must ensure that the statute of limitations applicable to a grievance filed against a prosecutor that alleges a violation of the disclosure rule does not begin to run until the date on which a wrongfully imprisoned person is released from a penal institution.

        (b-2) For purposes of Subsection (b-1):

        (1) “Disclosure rule” means the disciplinary rule that requires a prosecutor to disclose to the defense all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, including Rule 3.09 (d), Texas Disciplinary Rules of Professional Conduct.

        (2) “Penal institution” has the meaning assigned by Article 62.001, Code of Criminal Procedure.

        (3) “Wrongfully imprisoned person” has the meaning assigned by Section 501.101.

        As soon as practicable after the effective date of this Act but not later than December 1, 2013, the Texas Supreme Court shall amend the Texas Rules of Disciplinary Procedure to conform with Section 81.072, Government Code, as amended by this Act. This Act takes effect September 1, 2013.

These amendments to Section 81 of the Government Code have the effect of once again placing language derived from Brady v. Maryland in the Texas statutes. The statute uses the term “disclosure rule,” which requires a prosecutor to disclose to the defense all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.

There are two other important aspects of this bill. First, the bill disallows the State Bar from issuing private sanctions when prosecutors are found to have committed Brady violations. Second, the bill changes the statute of limitations for state bar grievances for Brady violations to begin to run when an exoneree leaves prison.

Historically, the two main defenses to a Brady violation are “I didn’t know about it” and “I didn’t think it was material.” In that regard, consider the following suggestion.

PRACTICE TIP: Following receipt of the automatic discovery disclosures, it is strongly advised you send a written letter specifically requesting the prosecutor to affirmatively look for and uncover Brady and Giglio material.

The third bill signed into law related to the Morton case was HB 1847, authored by Representative Stefani Carter. The essence of this bill was to require specific training to prosecutors regarding their duty to disclose exculpatory and mitigating evidence. HB 1847 amends Chapter 41 Government Code and reads as follows:

Section 41.111. TRAINING RELATED TO PROSECUTING ATTORNEY’S DUTY TO DISCLOSE EXCULPATORY AND MITIGATING EVIDENCE. (a) Each attorney representing the state in the prosecution of felony and misdemeanor criminal offenses other than Class C misdemeanors shall complete a course of study relating to the duty of a prosecuting attorney to disclose exculpatory and mitigating evidence in a criminal case.

        (b) The court of criminal appeals shall adopt rules relating to the training required by Subsection (a). In adopting the rules, the court shall consult with a statewide association of prosecuting attorneys in the development, provision, and documentation of the required training.

        (c) The rules must:

        (1) require that each attorney, within 180 days of assuming duties as an attorney representing the state described in Subsection (a), shall receive one hour of instruction relating to the duty of a prosecuting attorney to disclose exculpatory and mitigating evidence in a criminal matter;

        (2) require additional training on a schedule or at a time as determined by the court;

        (3) provide that the required training be specific with respect to a prosecuting attorney’s duties regarding the disclosure of exculpatory and mitigating evidence in a criminal case, and must be consistent with case law and the Texas Rules of Professional Conduct; and

        (4) provide for a method of certifying the completion of the training described in Subdivisions (1) and (2).”

This bill, which takes effect January 1st, is simple and straight­forward. It has been suggested by some that education and awareness are important aspects of the discovery process, and this bill is indicative of those suggestions.

While simple, it is specifically suggested that the intent of this training should lead to the basic conclusion that a prosecutor is NOT supposed to make a judgment about what he/she considers “material,” and that he/she should always err on the side of disclosure.

It is often said justice is blind, but there can be no justice if a defendant is “blinded” from the evidence to be used against him in court. Come New Year’s Day 2014 in Texas, criminal defendants will have the ability to see the evidence against them that is held by the State. These three bills are a step in the right direction towards justice for all of the citizens of Texas.